2010 ALL MR (Cri) 147
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
P.V. HARDAS AND A.V. NIRGUDE, JJ.
Suresh S/O. Shrirang Mandawgane Vs. State Of Maharashtra
Criminal Appeal No.466 of 2007
5th November, 2009
Petitioner Counsel: Mr. N. B. SURYAWANSHI
Respondent Counsel: Mr. S. V. KURUNDKAR
Penal Code (1860), S.300 - Evidence Act (1872), S.32 - Murder - Dying declaration - Prosecution case that accused suspecting fidelity of his wife alleged to have poured kerosene on her person and set her on fire - Two dying declarations recorded before Police Head Constable and Tahsildar - Version of deceased in respect of the details of the incident are completely different in two dying declarations - Both dying declarations are not in consonance with each other and are at variance - Deceased also not made any statement as to how appellant-accused during that night suffered burn injuries - Evidence of the prosecution based on the two dying declarations rejected - Conviction of appellant-accused set aside. (Paras 5 to 8)
A. V. NIRGUDE, J.:- The appeal is filed against the judgment and order rendered by Ad-hoc Additional Sessions Judge, Jalna dated 04-04-2007 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for life and to pay a fine of Rs.1000/- (Rs. One thousand only), in default to payment of fine, to suffer further Rigorous Imprisonment for six months, in Sessions Case No.94/2006.
The appellant and the deceased Mangalbai got married about more than 35 years back. They have four grown up children. The appellant was addicted to consumption of liquor since last more than 10 years and he used to suspect the fidelity of his wife the deceased Mangalabai and on that count, he used to beat,abuse and threaten her that he would kill her. The incident in question took place on 09-03-2006. At the evening of that day, the appellant, his wife Mangalbai and his son Vilas took meals. Vilas left for his work soon after the meals. The appellant had already consumed liquor and so he was under its influence. During the night at about 1.00 a.m. while Mangalbai was in sleep, the appellant poured kerosene on her person and set her on fire. Mangalbai sensing heat of the flame got up and saw her husband-appellant leaving the house. She shouted for help. Hearing her cries, neighbours Rujalbai, Ramprasad, and Chandrakala P.Ws.8 and 7 P.W.2 respectively came to rescue and extinguished the fire. Soon thereafter, Mangalbai's brother Bhausaheb P.W.1 and her father Sakharam P.W.5 and one Raju came there. They took Mangalbai to Civil Hospital for medical treatment. Duty Medical Officer at about 2.10 a.m. got Mangalbai admitted in the hospital and intimated this fact to the police. Police Head Constable Pandit P.W.11 then came to Civil Hospital and recorded dying declaration of Mangalbai at Exhibit-48 at about 2.30 a.m. Police thereafter registered Crime No.51/2006 on the basis of dying declaration and the investigation was entrusted to P.S.I. Bhanuse P.W.12. P.S.I. Bhanuse at about 6.35 a.m. sent a requisition for recording dying declaration by the Executive Magistrate. At about 8.00 a.m. Tahasildar Joshi P.W.13 came to the hospital and recorded another dying declaration of Mangalbai at Exhibit-60. On the other hand, P.S.I. Bhanuse conducted the investigation. On the same day at about 7.30 p.m. Mangalbai's relatives shifted her to a private Nursing Home of Dr. Rathod P.W.6. Mangalbai, however, died on 15-03-2006 at about 3.00 p.m. The offence punishable under Section 302 of the Indian Penal Code was added to the case and soon after completion of the investigation, P.S.I. Bhanuse sent the charge-sheet against the appellant. The Sessions trial took place before the learned Ad-hoc Additional Sessions Judge, Jalna and the learned Ad-hoc Additional Sessions Judge, Jalna (hereinafter be referred to as "the learned Judge of the trial Court") held that the prosecution had proved the offence. Mr. N. B. Suryawanshi, the learned Advocate appearing on behalf of the appellant-accused took us through the entire record including depositions of all the witnesses and asserted that the learned Judge of the trial Court erred in placing the reliance on evidence of the dying declarations. He pointed out and rightly so that the prosecution case virtually depends only on dying declarations of deceased Mangalbai. So the main question before us is whether the dying declarations made by deceased Mangalbai are worthy of reliance.
3. It is common ground that soon after the incident which took place at about 1.00 a.m. during the night between 8th and 9th March, 2006, Mangalbai was promptly admitted to Civil Hospital, Jalna where the medical treatment to her commenced. Even her first dying declaration was recorded within an hour or so at about 2.30 a.m. during that night.
Let us now give details of the two dying declarations.
(I) P.H.C. Pandit P.W.11 who was on duty on that night at the Civil Hospital, Jalna was informed about the incident and he soon reached the Burn Ward. He called the Doctor and asked him whether Mangalbai was in a condition to give statement. Medical Officer stated, she was able to give statement. He said, he then recorded her statement. He deposed details as to what Mangalbai said to him. He said, she told him that her husband was addicted to liquor for about 8 to 10 years and that he used to suspect her fidelity and on that count, he used to threaten her that he would kill her etc. She further narrated to him the fact that soon after taking meals on that night, her son went away for his work and the appellant-her husband-stayed put in the house. She said, she and her husband were sleeping in the house. She said, at about 1 or 1.30 a.m. during that night, the appellant poured kerosene on her person and set her on fire by throwing burning match stick on her person. She then told him that her husband opened the door and ran away out of the house. She also said, she then shouted and her neighbours gathered there to rescue her etc. Pandit P.W.11 then said that he accordingly recorded the statement of Mangalbai and proved it, which is at Exhibit-48. We on perusal of the same found it to be similar to the deposition of P.W.11.
(II) Tahasildar Joshi, P.W.13 in his deposition said that on 09-03-2006 he received intimation from police for recording dying declaration of Mangalbai. He said, At about 8.00 a.m. he went to the hospital, met Medical Officer there and asked whether Mangalbai was in a condition to give statement. He said, the Medical Officer then came with him to Burn Ward and after examining Mangalbai, Medical Officer allowed him to record her statement. Tahasildar Joshi, P.W.13 then said that Mangal disclosed to him that her husband-appellant used to beat her. She further told him that during that night, her husband-appellant came home at late hours then he assaulted her. She then told that her husband then poured kerosene on her person from a plastic can which was present in the house and then set her on fire, She said, she then shouted for help. Some neighbours came to her rescue and then she was sent to Civil Hospital, Jalna. Tahasildar Joshi said that he recorded this version of Mangalbai promptly and obtained her thumb mark and also Medical Officer's endorsement about the condition of Mangalbai. Tahasildar Joshi thus proved second dying declaration at Exhibit-60.
4. It is, clear that the above mentioned two witnesses not only recorded two different dying declarations but despite searching cross-examination, they stood ground and could prove the factum of dying declarations. So we have two dying declarations of the deceased on record duly proved. Mr. S. V. Kurundkar, learned A.P.P. asserted that there is hardly any variance in the two dying declarations in as much as the victim named the appellant as perpetrator and that minor variance appearing in the dying declarations was natural and so should be ignored or tolerated. On the other hand, learned Advocate appearing on behalf of the appellant asserted that both these dying declarations are poles apart and cannot be relied upon. After going through the depositions of above mentioned two witnesses and also the documents Exhibit-48 and 60 the written dying declarations, we are of the view that both these dying declarations are not inconsonance with each other and are at variance. We noticed that first dying declaration suggests that the couple, appellant and his wife Mangalbai were quite at peace till they had their dinner and till their son left for work. There was nothing wrong between them even thereafter as Mangalbai could go to sleep soon after the meals. Only at 1.00 a.m. i.e. after few hours, the appellant allegedly attacked Mangalbai. There was thus no provocation for such attack. There was no quarrel, assault etc preceding to the fatal attack. All of a sudden, the appellant allegedly poured kerosene on the person of Mangalbai presumably while she was still lying down on her bed and then set her on fire. It is also alleged that immediately thereafter the appellant left the house. As against this, the second dying declaration suggests a completely different story. This time Mangalbai alleged that till about 1.00 a.m. on that night, the appellant was not at home. He came home in a inebriated state and started beating and abusing her and during that violence, he allegedly poured kerosene on her person and set her on fire. So though Mangalbai mentioned that it was the appellant who attacked her and set her on fire, her version in respect of the details of the incident are completely different in two dying declarations. It is clear that if one version is accepted the other would be rejected as false one. Since there is no third version and this is the only incriminating circumstance against the appellants the prosecution ought to rely on one of the versions. There emanates no indication from the prosecution as to which version they prefer over the other. In fact since both the versions are prosecution evidence, they rely on both of them. As such they accept the hazard of the consequence.
5. One more important circumstance which goes against these dying declarations is the fact that the appellant during that night also suffered burn injuries. Dr. Gute P.W.9 during the cross-examination admitted that on 09-03-2006 not only deceased Mangalbai was admitted to the hospital but the appellant was similarly admitted to the hospital and that he had treated him for his burn injuries. This witness stated that the appellant had sustained 9% burn injuries, out of which the burns on his face were 4% and remaining 5% burns were found on right and left arms. The injury certificate at Exhibit-32 issued in respect of appellant's burn injuries was thus proved. It is obvious that the appellant sustained these injuries at the time of incident. In his statement under Section 313 of the Code of Criminal Procedure, he stated that his wife tried to commit suicide and he tried to extinguish the fire and thereby he sustained burn injuries. It was, therefore, necessary for Mangalbai while she gave her dying declaration to explain as to how her husband the appellant had sustained his injuries. In both dying declarations she made no statement as to whether after setting her on fire, the appellant came near her for any purpose and came in contact of flames emanating from her person. Thus, in our view, this is a serious lacuna in the dying declarations.
6. The law on the point as to how the Court should appreciate the evidence in which there are multiple dying declarations is discussed in the judgment of our High Court in the case of Suresh s/o. Arjun Dodorkar (Sonar) Vs. State of Maharashtra reported in 2005 ALL MR (Cri) 1599. [Incidentally one of us (P. V. Hardas, J.) was party to the said judgment]. The relevant portion of the said judgment reads as under :-
"In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself. In these two dying declarations there is consistency in respect of the name and the number of accused However, there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declaration and can be discerned from the perusal of the same. Therefore, according to us, no reliance can be placed on the two written dying declarations at Exhs.24 and 27 as acceptance of any one dying declaration necessarily renders the other as false. If in the dying declaration the truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declaration. Merely because the overt act attributed to the accused is consistent in both the dying declarations would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross-examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. In our opinion, therefore, no reliance can be placed on the dying declarations at Exhs.24 and 27".
7. The case before us today is exactly similar and above quoted observations can safely be repeated while appreciating the two dying declarations in this case. In the result, we have no hesitation to reject the evidence of the prosecution based on the two dying declarations in this case. Once this evidence is removed from consideration, there remains no other incriminating circumstance against the appellant. Besides as discussed above in view of burn injuries suffered by the appellant and in view of his side of the story narrated by him in the statement under Section 313 of the Code of the Criminal Procedure, there is indication that the deceased Mangalbai probably died suicidal death. The appeal should therefore succeed.
8. This Criminal Appeal is allowed and the conviction of the appellant-accused is hereby quashed and set aside and the appellant-accused is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant be refunded to him.